Premature Petition for Review of Immigration Court Ruling: Departure From Precedent or Necessary Relief?

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Blythe McGregor, Associate Member, University of Cincinnati Law Review

I. Introduction

Imagine receiving notification that an immigration judge has ordered your removal to a country where you have not resided for over two decades. The government amended the factual allegations against you, and you were never given notice. The judgment for removal was made in your absence. You have five children depending on you in America, two of whom have medical issues. This was the plight facing Celia Diaz Martinez after her Notice to Appear (“NTA”) was amended by the government and an immigration judge issued an order for her removal.[1]

Martinez appealed to the Board of Immigration Appeals (“BIA”) after an immigration judge denied Martinez’s motion to reopen her case (“MTR”).[2] Prior to the BIA’s decision, Martinez filed a petition pro se for review of the immigration judge’s decision in the Ninth Circuit Court of Appeals.[3] The BIA dismissed the order two months after Martinez filed in the Ninth Circuit.[4] The Attorney General filed a motion to dismiss for lack of subject matter jurisdiction because Martinez filed the appeal before the BIA had issued a decision on the merits.[5] The Ninth Circuit denied the Attorney General’s motion and considered this issue on appeal of the denial of this MTR, as well as the appeal of the denial of a second MTR.[6]

The Ninth Circuit determined that it had subject matter jurisdiction over the appeal of the first MTR and, in doing so, broadened an existing circuit split. Previously, the Second, Third, and Eleventh circuits determined that a circuit court has jurisdiction to consider an appeal even when a lower court issues a decision regarding the same subject matter after the appeal petition has been filed. The Fifth and Sixth circuits disagree. 

II. Background

A. Overview of American Immigration Courts

A brief overview of the structure of United States immigration courts is appropriate before discussing circuit court appellate jurisdiction.  The immigration court system is part of the U.S. Department of Justice’s Executive Office of Immigration Review (“EOIR”).[7] Under the EOIR, there are fifty-eight immigration courts and a Board of Immigration Appeals (“BIA”).[8] Unless a federal court overturns the immigration judge and BIA decisions, the Attorney General has controlling oversight over the immigration courts and BIA as to questions of law.[9]  Immigration court decisions can be appealed to the BIA, and BIA decisions can be appealed to federal appeals courts.[10]  The charging document[11] used to initiate removal proceedings in Martinez is the notice to appear (“NTA”).[12]  This document states the charges and factual allegations surrounding the case.[13] It was this document that was amended without notice in Martinez, thus creating the substantive basis for Martinez’s MTR.[14] Additional controversy lies with the procedural issue of premature appeal. 

B. Support for Ripening Pending Appeal

In Martinez, the Ninth Circuit recognized that previously the court had made it clear that relevant statutes limited jurisdiction to review “final orders of removal from the BIA.”[15] This precluded review of decisions that the BIA remands to the immigration judge, but the Ninth Circuit had never before addressed whether cases can ripen while an appeal is pending in the circuit court.[16] Thus, the issue was not whether the circuit court could review the case when first filed, before the BIA made a decision, but whether the case could ripen while when there was an issuance of a final order and the circuit court appeal was still pending.

The Ninth Circuit identified two factors that weigh in favor of allowing an appeal to ripen: an existence of substantive rights and a lack of experience by the appellant. First, the court provided that there is a prioritization of substantive rights of parties, rather than allowing procedural defects to preclude appellate review.[17] This “pragmatic approach” allowed an assumption of jurisdiction when “subsequent events can validate the prematurely filed appeal.”[18]The court recalled allowing premature notices of appeal in a variety of circumstances, such as when notice of appeal was filed before an order was amended.[19] The Ninth Circuit also discussed the importance of being lenient when dealing with pro se parties, such as Martinez.[20] Thus, when an appellant lacks legal experience and expertise, allowing an appeal to ripen may only be fair.

The Second Circuit came to the same conclusion.[21] In Herrera-Molina, an immigration judge denied Herrera-Molina’s application for withholding of removal. Herrera-Molina filed an appeal with the BIA and a petition for review with the Second Circuit.[22] After the BIA dismissed the appeal, the Attorney General contested the Second Circuit’s jurisdiction.[23] The Second Circuit rejected the Attorney General’s contention and held that, so long as there is no prejudice to the Attorney General, an appeal can become ripe for review after filing when the lower court adjudicated the remaining issues.[24]

The Third Circuit agreed.[25] In Khan, the petitioners filed a motion for emergency stay of removal and MTR with the BIA.[26] Before the BIA issued a decision, the petitioners prematurely filed a petition for review of the BIA’s denial almost two weeks before the motion was actually denied.[27] The Third Circuit adhered to the Herrera-Molina reasoning and held that because the Attorney General had been shown no prejudice, the premature petition had ripened.[28]

Finally, the Eleventh Circuit agreed that the ripening approach to premature petitions is consistent with the court’s precedent.[29] In Jimenez-Morales, an appellant was in the midst of immigration court proceedings surrounding the reinstatement of a previous removal order when the appellant petitioned for review in the Eleventh Circuit.[30] The BIA decided against the appellant in the form of a finding of no reasonable fear of persecution or torture and a reinstatement of the appellant’s order for removal.[31] The Eleventh Circuit had to determine whether the lower court’s decision made the petition ripe for review.[32] They determined that it did, so long as no action had been taken on the merits and there was no prejudice to the government.[33] The Eleventh Circuit placed premature appeals in two categories: those that are filed from an order dismissing a claim or party and those that are filed from interlocutory order that are not immediately appealable.[34] The court placed this situation in the former category, because once the proceedings came to a close, the reinstatement of the appellant’s removal order was final.[35]

Even though the nature of the appealed order differed in each case, the Ninth Circuit in Martinez found the type of order was irrelevant. [36] In each case the appellant filed a petition for circuit court review of a non-final immigration judgement or BIA order that became final while the appeal in the circuit court was pending.[37]

C. Fifth and Sixth Circuits: A Premature Petition is Nonreviewable

In Martinez, the Attorney General advanced the positions of the Fifth[38] and Sixth[39] circuits in support of the contention that the Ninth Circuit could not review a premature petition. In Jaber, the Sixth Circuit found that it did not have subject matter jurisdiction to review a not yet final BIA decision.[40] The court reasoned that the appellant could have filed a petition after the BIA did issue a final decision.[41] Importantly, this case differs because neither the appellant nor the appellant’s counsel filed the petition in the circuit court.  Instead, after the immigration judge denied Jaber’s motion, Jaber filed a habeas corpus petition in federal district court and the district court transferred the case to the Sixth Circuit, finding that the petition was actually challenging a “final administrative order of deportation.”[42] The implications of this distinction will be discussed in the next section. 

In Moreira, the Fifth Circuit determined that review of an undecided BIA case was outside the court’s jurisdiction when a district court transferred the case following the appellant’s filing of a habeas petition. The Fifth Circuit reasoned that because it did not have jurisdiction to review the immigration judge’s decision independently, it could not consider a petition filed before the BIA makes a final order.[43] Notably, the Fifth Circuit relied on Jaber and a 2002 Ninth Circuit case[44] in making this determination. In the Ninth Circuit case, the court held that it did not have jurisdiction to consider a petition that had been filed before the case had been remanded to the immigration judge and before the BIA issued a final deportation order, and that a BIA order issued when the appeal was pending did not “cure” a premature petition.[45]

III. Analysis

Each side of the circuit split presents distinct procedural posture and factual distinctions. Also, at least one circuit has changed its position on this issue.[46] This raises the question of whether those factual differences should affect the outcome of this matter and whether changes in the courts’ view of immigration have an impact.

A. Structure of Immigration Courts

The structure of the immigration courts, a largely administrative system where all rulings are subject to the Attorney General’s oversight, may support allowing petitions to ripen for review after they are filed. Although the BIA does act as a separate appellate body and is able to review orders issued by the immigration courts, both the immigration courts and the BIA operate under the Attorney General’s control. Thus, the two courts have a sort of unity under this control. Depending on the political regime in power at a particular time, legal experts have theorized that the system is stacked against “asylum seekers and immigrants of color.”[47]

If litigants are unable to obtain favorable decisions in immigration courts or in the BIA, their next option is to appeal to federal circuit courts. Because of the apparent unity of the immigration courts and BIA, it may seem obvious to the litigant, even before the BIA issues a ruling, that an appeal to a federal court of appeals is imminent. It is important to note that, while an automatic stay of removal is in place while an appeal is pending with the BIA,[48] filing a petition for review in a circuit court does not stay the petitioner’s deportation from the United States.[49] Although the petitioner could file a stay motion with the court of appeals, a pro se litigant, like Martinez, may not have the legal acumen to take advantage of this option. In the immigration context, there is a time limit which likely prompts petitioners to file in the Court of Appeals before a final BIA ruling. 

Although the above cases describe this filing as “premature,” it is unlikely that a petition filed pre-BIA-ruling feels premature to these parties. Adhering to the intricacies of civil procedure is likely not a priority for those whose way of living is on the line. This urgency is exemplified in Khan. There, the petitioners “prematurely” filed in the Third Circuit within hours of petitioners’ scheduled removal from the United States.[50] A clerk at the BIA allegedly informed the petitioners that the BIA would not be considering the motion for an emergency stay of removal prior to the BIA issuing a final ruling.[51] It is not difficult to understand why these petitioners felt like the odds were stacked against them and wanted to appeal to the Third Circuit before adverse actions were taken.  The nature of the immigration court structure and the urgency involved in immigration cases weighs in favor of the “premature” petition ripening for review upon an unfavorable BIA ruling.

B. Postural Differences 

As discussed above, the Fifth and Sixth Circuit cases that rejected the ripening approach have procedural differences from cases on the other side of the circuit split. Most importantly, neither the appellants nor the appellants’ counsel filed a petition in the circuit court: a federal district court transferred the cases after the appellant filed a habeas corpus petition. Deciding to transfer the case to the circuit court requires a determination of what the petitioner is intending to challenge when filing the habeas petition.[52]  For example, in Jaber, the district court had to determine whether the petitioner wished to challenge the immigration judge’s final order or the pending BIA case. This lack of clarity stemmed from the fact that the petitioner did not specify which decision he was seeking to have the court review. Courts may reject an ambiguous petition and this ambiguity might be the reason the petitions were rejected in Jaber and Moreira.  

C. Social and Political Attitudes

Circuit court attitudes have changed, and will change, as political and social attitudes change. As explained in the previous section, the court in Moreira relied on a Ninth Circuit case from 2002 to support a holding that prematurely filed petitions are nonreviewable. Seventeen years later the same circuit exercised a pragmatic approach and leniency toward pro se parties in adjudicating the Martinez case and reached an opposite conclusion.

Notably, the cases that condemn the ripening approach were decided in the mid to late 2000s, while the cases supporting the approach were decided in the 2010s. The change in decade and a major shift in political ideology affecting immigration courts after the 2016 election, may have impacted circuit courts’ outlook on this issue. [53] If this trend continues, the circuit split may be narrowed in years to come.

IV. Conclusion

Martinez perpetuated a circuit court trend for procedural leniency toward BIA appellants and established a similar permissiveness towards pro se litigants in this context. This approach is essential to ensure fair outcomes in removal proceedings, especially against the backdrop of an apparent ideologically unified immigration court structure. It would be helpful if the Supreme Court could shed some light, but perhaps circuit courts will continue to decide this issue according to the social and political environment. At least in the current era, circuit courts should allow petitions to ripen for review post-filing when the BIA issues an unfavorable decision for a petitioner while the appeal is pending because of the urgent nature of immigration appeals and the postural differences in Jaber and Moreira.


[1] Martinez v. Barr, 941 F.3d 907 (9th Cir. 2019).

[2] Id. at 914.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] U.S. Immigration Law Research Guide: Structure of U.S. Immigration Law, Loyola Law School, http://guides.library.lls.edu/c.php?g=497692&p=3407350.

[8] See EOIR Immigration Court Listing, The United States Department of Justice,  https://www.justice.gov/eoir/eoir-immigration-court-listing.

[9] See 8 U.S.C.A. § 1103 (a)(1). 

[10] See Zhou Hua Zhu v. U.S. Attorney General, 703 F.3d 1303, 1307 (11th Cir. 2013). 

[11] Charging documents in general commence criminal charges against someone. See United States v. Cortez, 930 F.3d 350, 359 (4th Cir. 2019). 

[12] Martinez, 941 F.3d at 911. 

[13] Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).

[14] Id. at 921. 

[15] Id. at 915.

[16] Id.

[17] Id. at 916.

[18] Id.

[19] Id.

[20] Id.

[21] Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir. 2010).

[22] Id. at 131.

[23] Id.

[24] Id. at 132.

[25] Khan v. Attorney General of the U.S., 691 F.3d 488 (3d Cir. 2012).

[26] Id. at 492.

[27] Id. 

[28] Id. at 493.

[29] Jimenez-Morales v. U.S. Attorney General, 821 F.3d 1307 (11th Cir. 2016).

[30] Id. at 1308.

[31] Id.

[32] Id. 

[33] Id. at 1309.

[34] Id.

[35] Id. 

[36] Martinez v. Barr, 941 F.3d 907, 919 (9th Cir. 2019).

[37] Id. at 920.

[38] Moreira v. Mukasey, 509 F.3d 709 (5th Cir. 2007).

[39] Jaber v. Gonzales, 486 F.3d 223 (6th Cir. 2007).

[40] Id. at 228.

[41] Id. at 230.

[42] Id. at 227.

[43] Moreira, 509 F.3d at 713.

[44] Brion v. I.N.S., 51 App’x 732 (9th Cir. 2002).

[45] Id. 

[46] See id. at 732.

[47] See The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, Southern Poverty Law Center,  https://www.splcenter.org/20190625/attorney-generals-judges-how-us-immigration-courts-became-deportation-tool.

[48] See Merritt v. United States Immigration & Customs Enforcement, 737 F. App’x 66 (3d Cir. 2018).

[49] Seeking a Judicial Stay of Removal in the Court of Appeals: Standard, Implications of ICE’s Return Policy and the OSG’s Misrepresentation to the Supreme Court, and Sample Stay Motion, National Immigration Project, https://nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/fed/2012_May_judicial-stay-remov.pdf.

[50] Khan v. Attorney General of the U.S., 691 F.3d 488, 492 (3d Cir. 2012).

[51] Id. at 495.

[52] See Jaber v. Gonzales, 486 F.3d 223, 227 (6th Cir. 2007).

[53] See The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, Southern Poverty Law Center, https://www.splcenter.org/20190625/attorney-generals-judges-how-us-immigration-courts-became-deportation-tool.

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